Remedies against third parties: recipient and accessory liability - Defenses available to innocent volunteers

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Overview

Understanding third-party liability in trust law is key for the SQE1 FLK2 exam. This article examines recipient and accessory liability, focusing on defenses for innocent volunteers unintentionally involved in trust breaches. Understanding these legal principles equips candidates with the tools needed to tackle equitable remedies against third parties—an essential part of the FLK2 syllabus.

Recipient Liability: The Doctrine of Knowing Receipt

Recipient liability occurs when a third party receives trust property transferred improperly. Known as 'knowing receipt', this hinges on the recipient's awareness of the property's problematic origins.

Elements of Knowing Receipt

  1. Receipt of Trust Property: The third party receives property under a trust.
  2. Beneficial Receipt: The property benefits the third party personally.
  3. Awareness: The recipient knows (actually or constructively) that the property breaches the trust.
  4. Unfair Retention: Keeping the property is unjust given the recipient’s knowledge.

The significant case of El Ajou v Dollar Land Holdings plc [1994] clarifies these points, stressing that the necessary awareness makes retention unfair.

The Knowledge Requirement

How much a recipient knows has seen legal refinement. In BCCI (Overseas) Ltd v Akindele [2001], the Court of Appeal outlined that a recipient's awareness must make retaining the benefit inequitable.

Example: Emily, a developer, receives £500,000 from a solicitor to buy land, not knowing these funds were misused. Two scenarios arise:

  1. If Emily learns of the breach while still holding the funds or land, she may be liable if she keeps the property.
  2. If she has already used the funds for development and learns later, the court will evaluate whether retaining the improved property is fair.

Accessory Liability: The Doctrine of Dishonest Assistance

Accessory liability applies to those who aid in a trust breach without receiving property. The key factor is 'dishonest assistance'.

Elements of Dishonest Assistance

  1. Breach of Trust or Duty: There’s a breach.
  2. Help Provided: The third party assists in the breach.
  3. Dishonesty: The assistance is dishonest by common standards.

Royal Brunei Airlines v Tan [1995] set the precedent that dishonesty is judged against what an honest person would see as dishonest behavior.

The Standard of Dishonesty

Dishonesty's interpretation has evolved. Barlow Clowes International Ltd v Eurotrust International Ltd [2005] refined the test, stating that while a defendant’s personal standards are relevant, the final test is objective.

Example: Robert, a financial advisor, helps invest trust funds in risky projects, knowing this is prohibited. Consider two possibilities:

  1. If Robert believes his actions benefit the beneficiaries and an observer finds them dishonest, liability may apply.
  2. If Robert knows he’s violating the trust but thinks he’s just bending rules, an objective test will likely find him dishonest.

Defenses for Innocent Volunteers

Innocent volunteers tangled in trust breaches may use several defenses.

1. Bona Fide Purchaser for Value Without Notice

This defense applies to those who:

  • Provide value for the trust property
  • Act in good faith
  • Have no notice of the breach

Sinclair v Brougham [1914] upheld this, protecting innocent buyers.

2. Change of Position

Recognized in Lipkin Gorman v Karpnale Ltd [1991], this defense lets recipients keep benefits if they’ve changed position based on the receipt.

Example: Catherine receives £100,000 from her uncle, unknowingly from misused trust funds. She renovates her home:

  1. If she lacked reason to suspect, she may use this defense to keep the value added to her home.
  2. If she ignored suspicion, the defense could be denied.

3. Ministerial Receipt

Those acting only as intermediaries, without personal benefit, may avoid liability, as explored in Agip (Africa) Ltd v Jackson [1990].

4. Lack of Knowledge

As per Re Diplock, recipients unaware of the breach are not liable. Beneficiaries must prove the recipient knew or should have known about the breach.

5. Equitable Defenses

Courts can use equitable defenses to prevent unfair outcomes, allowing innocent volunteers to retain some property, particularly if it improves their situation or covers essential costs.

Application and Practice

For the SQE1 FLK2 exam, candidates should:

  1. Determine the third party’s role (property receipt or breach assistance).
  2. Examine the party’s knowledge or intentions.
  3. Consider available defenses.
  4. Reflect on equitable remedies against the party.

Complex Scenario: £1 million is misused from a family trust, funding: a) A yacht, bought by a friend’s company, suspicious but uninformed. b) A startup, aided by an advisor who ignored the trust’s rules. c) A donation to a charity, which built with the funds.

Candidates should analyze:

  • The friend’s company’s recipient liability
  • The advisor’s accessory liability
  • The charity’s defenses as an innocent party

Conclusion

Understanding recipient and accessory liability and defenses for innocent volunteers is vital for SQE1 FLK2 success. These principles support equitable remedies in trust law. Candidates must adeptly apply these concepts to complex scenarios, differentiating between receipt and assistance, and evaluating defense viability. These skills prepare aspiring solicitors to handle the detailed aspects of trust law intertwined with equity and restitution.

Remember:

  1. Recipient liability involves knowing receipt.
  2. Accessory liability is about dishonest assistance.
  3. Dishonesty is tested objectively, considering the person’s knowledge.
  4. Innocent volunteers have defenses like bona fide purchase or lack of knowledge.
  5. Equitable principles can protect innocents from unfairness.
  6. Analyzing liability requires careful fact consideration, party knowledge, and available defenses.